FBI Still Doesn't Think It Needs A Warrant To Read Your Email, Despite Court Ruling To The Contrary

from the of-course-not dept

The ACLU has continued its campaign to explore whether or not the government gets a warrant before scouring your email. Last month, they discovered that the IRS doesn't believe in getting a warrant -- leading to the IRS promising to change that policy. Now they've received some documents from the FBI in response to a FOIA request that again suggest that, despite the ruling in US v. Warshak, in which the 6th Circuit said that a warrant is needed to compel an ISP to turn over emails, the FBI believes it can access emails older than 180 days without a warrant, under ECPA. As we've discussed at length, ECPA (the Electronic Communications Privacy Act) is a very outdated piece of legislation which considers emails on a server over 180 days to be "abandoned" because no one considered a cloud computing future.

What the ACLU found in these documents is that the FBI hasn't updated its Domestic Investigations and Operations Guide (DIOG) in response to the Warshak ruling, and it still suggests that agents can easily access such emails without a warrant. Instead, it says:

In enacting the ECPA, Congress concluded that customers may not retain a “reasonable expectation of privacy” in information sent to network providers. . . [I]f the contents of an unopened message are kept beyond six months or stored on behalf of the customer after the e-mail has been received or opened, it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney. In that case, the government may subpoena the records from the third party without running afoul of either the Fourth or Fifth Amendment.

That's a... charitable interpretation of reality. That's what Congress felt back then, but based on a very different network setup. However, as the courts noted in Warshak, the 4th Amendment is still important and still rules.

The ACLU also asked different US Attorney's offices for their guidelines, and found that policies differed greatly based on location. Northern Illinois, for example, seemed to recognize the 4th Amendment. But others, including in Texas, still seem to think that no warrant is required. As the ACLU notes, this hodgepodge of rules and the fact that the FBI hasn't changed its guidelines in response to Warshak just highlights the need for comprehensive ECPA reform.

If nothing else, these records show that federal policy around access to the contents of our electronic communications is in a state of chaos. The FBI, the Executive Office for U.S. Attorneys, and DOJ Criminal Division should clarify whether they believe warrants are required across the board when accessing people’s email. It has been clear since 1877 that the government needs a warrant to read letters sent via postal mail. The government should formally amend its policies to require law enforcement agents to obtain warrants when seeking the contents of all emails too.

More importantly, Congress also needs to reform ECPA to make clear that a warrant is required for access to all electronic communications. Reform legislation is making its way through the Senate now, and the documents released by the U.S. Attorney in Illinois illustrate that the law can be fixed without harming law enforcement goals. If you agree that your email and other electronic communications should be private, you can urge Congress to take action here.

Reader Comments

It must be easy to be a terrorist nowadays (if you are smart). Avoid American companies, use end to end encryption, tor, bitcoins (with proper anonymous setup) when needed and you are untraceable. Now try to be a law abiding citizen that only wishes proper privacy and freedom...

Fourth Amendment is dead letter

The 4th Amendment is still important and still rules.

Bullshit. The fourth amendment is scrap-paper.

The chief evil to which the fourth amendment used to be directed was the invasion of people's homes:

Yet, as we saw in Watertown last month, the SWAT teams now feel free to point guns at the all inhabitants in a 20-block neighborhood and order those inhabitants out of their homes. The SWAT teams now feel free to sweep through people's homes without the least shred of probable cause to believe that the object of their search is inside any particular house.

In Massachusetts, pointing a gun at someone, placing them in fear of their life—that is a crime. It should not be permitted without a damn good excuse.

Even outside Massachusetts, pointing a gun at someone without exceptional cause violates every bit of gun safety training anywhere.

When a police officer points a gun at an innocent person, and orders them out of their home—invades their house to search without even a good hunch that the search will yield its object— that is unreasonable.

Re: Re: Fourth Amendment is dead letter

This is just a stupid position to take; are you seriously suggesting that SWAT officers cordially offering to find armed gunmen hiding, unbeknownst to the homeowner - who has been on "voluntary" house arrest - in the cupboard or wherever is actually a usefull service? The premise is guilty until proven innocent, and innocent people smiling while submitting proof isn't a sign of all being well.

surely what this shows more than anything is exactly how out of touch Congress actually is with modern day. they have, in the main, very little knowledge of how the internet or today's technology functions. in contrast, the law enforcement agencies have a great deal of knowledge and then uses it to their advantage because of the idiotic ways Congress still dithers. if privacy, for example, is breached in life, it is breached over the air waves. only those that dont want that to be the case say it isn't the case, ie law enforcement!

Time for action on Google’s privacy policy

The above just to highlight that Mike is narrow-minded on privacy, never includes Google. He'll point out that the FBI spies on you, but omit Google doing the same. -- And what's the diff when Google will sell to the gov't every bit of data it's gathered on you? That's a way around the pesky 4th Amendment, and it's part of Google's purpose.

Repeated defending and promoting Google (despite a few minor pieces, sure, but nothing against its core) shows Mike is NOT real opposition to Big Brother, he's the loyal opposition.

Re: Time for action on Google’s privacy policy

I think privatizing security and having private companies do all the monitoring is where we're headed.

The monitoring is happening. It isn't going away as long as private companies can shape laws and as long as they can make money by compiling files on people.

At some point, rather than arguing in public, government will just become customers of private companies and let them handle the surveillance. And then if you have private companies handling security, they will be responsible for heading off crime and terrorism. And then if you privatize all public places, the private companies can limit access to those facilities to people who have paid for the privilege. Private companies will create walled communities (both online and offline and only approved people will be able to get in). If you have money, you will be safe. If you don't, you're on your own.

Re: Re: Time for action on Google’s privacy policy

This is how to get around security issues. You create your own facilities and the public doesn't have access.

San Jose approves $82 million private airport terminal for Silicon Valley elite | The Verge: "Google's Larry Page, Sergey Brin and Eric Schmidt need a place to store their private planes, and San Jose has answered the call. According to The San Jose Mercury News, the San Jose City Council has overwhelmingly approved a deal that would allow a private company, Signature Flight Support, to build a $82 million private airport complex at San Jose International Airport. The complex would house and service the jets of Silicon Valley corporate executives, predominately Google's leaders, whom the Mercury News says would control five out of a proposed seven hangars. In a 10-1 vote, the Council agreed to lease 29 acres of land on the west side of the airport to Signature for the next 50 years, over the objections of roughly two dozen nearby residents worried about noise pollution. Read more about the backstory here and at our source links below."

Attorneys ?

"it should be treated the same as a business record in the hands of a third party, such as an accountant or attorney. In that case, the government may subpoena the records from the third party without running afoul of either the Fourth or Fifth Amendment."

Does that really say that they can subpoena business records sent to an attorney ? What about attorney-client privilege ?

What happened to the ACLU?

Did I miss something? When did the ACLU become a useful group going after actual problems? Last I heard, they were just a bunch of scuzzy bullies using the force of the court system to ram a mangled-beyond-recognition personal interpretation of the Establishment Clause down everyone's throat, much like the fine folks at the MPAA like to do with their personal interpretations of copyright law.